Pennsylvania § 305 - Right to dispose of a decedent's remains.

§ 305. Right to dispose of a decedent's remains.

(a) General rule.--Except as specified in subsection (a.1), the determination of the final disposition of a decedent's remains shall be as set forth in this section unless otherwise specifically provided by waiver and agreement of the person entitled to make such determination under this section, subject to the provisions of a valid will executed by the decedent and sections 8611(a) (relating to persons who may execute anatomical gift) and 8654(1) (relating to requirement of explicit, specific and separate authorization).

(a.1) Exception for members of the armed forces.--The determination of the final disposition of a decedent's remains shall be as set forth in this section unless otherwise specifically provided by a DD Form 93 executed later in time than a valid will executed by the decedent or a waiver and agreement of the person entitled to make such determination under this section, subject to the provisions of sections 8611(a) and 8654(1).

(b) Disposition of the remains of a deceased spouse.--Absent an allegation of enduring estrangement, incompetence, contrary intent or waiver and agreement which is proven by clear and convincing evidence, a surviving spouse shall have the sole authority in all matters pertaining to the disposition of the remains of the decedent.

(c) Disposition of the remains of others.--If there is not a surviving spouse, absent an allegation of enduring estrangement, incompetence, contrary intent or waiver and agreement which is proven by clear and convincing evidence, the next of kin shall have sole authority in all matters pertaining to the disposition of the remains of the decedent.

(d) Procedure.--Where a petition alleging enduring estrangement, incompetence, contrary intent or waiver and agreement is made within 48 hours of the death or discovery of the body of the decedent, whichever is later, a court may order that no final disposition of the decedent's remains take place until a final determination is made on the petition. Notice to each person with equal or higher precedence than the petitioner to the right to dispose of the decedent's remains and to his attorney if known and to the funeral home or other institution where the body is being held must be provided concurrently with the filing of the petition. A suitable bond may be required by the court.

(1) If the court determines that clear and convincing evidence establishes enduring estrangement, incompetence, contrary intent or waiver and agreement, the court shall enter an appropriate order regarding the final disposition which may include appointing an attorney in fact to arrange the final disposition, with reasonable costs chargeable to the estate.

(2) If two persons with equal standing as next of kin disagree on disposition of the decedent's remains, the authority to dispose shall be determined by the court, with preference given to the person who had the closest relationship with the deceased. If more than two persons with equal standing as next of kin disagree on disposition of the decedent's remains, the authority to dispose shall be determined by the majority. Where two or more persons with equal standing cannot reach a majority decision, the court shall make a final determination on disposition of the decedent's remains.

(3) If the court determines that the petition is not supported by a clear and convincing evidence, the court may award attorney fees. An award of attorney fees shall constitute a setoff against any claim by the petitioner against the estate.

(e) Definitions.--As used in this section, the following words and phrases shall have the meanings given to them in this subsection:

"Armed forces." The armed forces of the United States, including a reserve component or the National Guard.

"Contrary intent." An explicit and sincere expression, either verbal or written, of a decedent adult or emancipated minor prior to death and not subsequently revoked that a person other than the one authorized by this section determine the final disposition of his remains.

"DD Form 93." A valid document or a successor form provided by the Department of Defense that is signed by a member of the armed forces and designates a person to direct the disposition of the remains of the person who signed the form.

"Enduring estrangement." A physical and emotional separation from the deceased at the time of death of the person authorized by this section to determine the final disposition of the decedent's remains, which has existed for a period of time that clearly demonstrates an absence of due affection, trust and regard for the deceased.

"Next of kin." The spouse and relatives by blood of the deceased in order that they be authorized to succeed to the deceased's estate under Chapter 21 (relating to intestate succession) as long as the person is an adult or an emancipated minor.

(Nov. 17, 1998, P.L.786, No.99, eff. 60 days; July 2, 2013, P.L.254, No.45, eff. 60 days; Oct. 23, 2018, P.L.594, No.90)

2018 Amendment. Act 90 amended subsecs. (a), (a.1) and (d)(2). Section 11(2) of Act 90 provided that the amendment of subsec. (d)(2) shall take effect in 60 days and section 11(3) of Act 90 provided that the remainder of the section shall take effect upon publication of the notice under section 8629.

2013 Amendment. Act 45 amended subsec. (a) and added subsec. (a.1) and the defs. of "armed forces" and "DD Form 93" in subsec. (e).

1998 Amendment. Act 99 added section 305.